Lewd Acts with a Minor Lawyers (PC 288a)

Lewd acts with a minor under PC 288(a) is always a felony, always a strike, and always requires sex offender registration. Our San Diego defense lawyers know how to fight these cases. Call 24/7.

A charge under Penal Code Section 288(a) changes everything overnight. Your name, your career, your family, your freedom. All of it is suddenly on the line, and the prosecution is treating you like a predator before you’ve had a chance to say a word.

We get it.

The circumstances that lead to PC 288(a) charges are rarely black and white. A parent accused during a bitter custody dispute. A caregiver whose innocent contact with a child is recharacterized by someone with an agenda. A false accusation from an angry family member, an ex-spouse, or a teenager looking for leverage. These cases arise from situations that are far more complicated than the charge sheet suggests.

Charges are accusations, not convictions. The prosecution still has to prove every element beyond a reasonable doubt, and that includes proving something notoriously difficult: what was in your mind at the time of the alleged touching. That’s a high bar. And it’s where experienced defense makes all the difference.

The fear, the isolation, and the overwhelming stigma attached to these charges are completely understandable. But what matters now is the defense you build. At David P. Shapiro Criminal Defense Attorneys, we’ve defended clients charged with sex offenses throughout San Diego County, including PC 288(a) cases where the accusations turned out to be false, the forensic interviews were flawed, and the evidence fell far short of proof beyond a reasonable doubt. We’ve taken these cases from investigation through jury verdict.

The bottom line is this: these cases are defensible. But the prosecution is already building their case. Evidence fades. Witnesses forget. The window for the strongest defense is now.

Quick Reference: PC 288(a) Lewd Acts with a Minor

Classification	Felony (always)
Base Sentence	3, 6, or 8 years in state prison
One Strike Law (Multiple Victims)	15 years to life
One Strike Law (Aggravating Circumstances)	25 years to life
Strike Offense	Yes, serious and violent felony
Sex Offender Registration	Tier 2 (minimum 20 years); Tier 3 (lifetime) for multiple convictions
Probation	Presumptively denied under PC 1203.066
Custody Credits	Must serve 85% of sentence

What Is a “Lewd Act” Under California Law?

Penal Code Section 288(a) defines this offense as willfully committing any lewd or lascivious act upon or with the body of a child under 14 years old, with the intent of arousing, appealing to, or gratifying the sexual desires of the defendant or the child.¹

Now, what does that actually mean? Let’s break it down.

The word “lewd” is doing a lot of work in this statute, and it does not mean what most people assume. A “lewd act” is any touching, of any body part, done with sexual intent.² The touching does not need to be on an intimate area of the body. It does not need to involve skin-to-skin contact. It does not need to be inherently sexual in nature. Even touching a child’s arm, leg, or back through clothing can qualify as a lewd act if the prosecution can convince a jury it was done with the intent to arouse or gratify sexual desire.

That’s the critical distinction. The act itself can look completely innocent. What makes it a crime under PC 288(a) is the intent behind it. And that’s exactly why these cases are so aggressively prosecuted and so fiercely contested.

Two other points are essential to understand:

The child’s consent is irrelevant. A child under 14 cannot legally consent to a lewd act. Even if the child initiated the contact, even if the child did not object, consent is not a defense.³

Actual arousal is not required. The prosecution does not need to prove that anyone was actually aroused. They only need to prove the defendant acted with the intent to arouse.⁴

What Must the Prosecution Prove?

To convict you of lewd acts with a minor under PC 288(a), the prosecution must prove ALL of the following elements beyond a reasonable doubt:⁵

1. You willfully touched any part of a child’s body, or willfully caused a child to touch your body, another person’s body, or the child’s own body.

“Willfully” means you did the act on purpose. It does not mean you intended to break the law or harm anyone. The prosecution has to show the touching was intentional, not accidental. But the touching itself can be of any body part, through clothing, and need not appear sexual to an outside observer.

2. You committed the act with the intent of arousing, appealing to, or gratifying the sexual desires of yourself or the child.

This is the element where most PC 288(a) cases are won or lost. The prosecution must prove what was in your mind at the moment of the alleged touching. That’s not easy. They typically rely on circumstantial evidence: the context of the touching, the relationship between the parties, statements made before or after, and patterns of behavior. But circumstantial evidence is not the same as proof, and a skilled defense attorney knows how to expose the gap between the two.

3. The child was under the age of 14 years at the time of the act.

The child’s age is an objective fact, and the prosecution must prove it. There is no “reasonable mistake of age” defense for PC 288(a). If the child was under 14, this element is met regardless of what the defendant believed about the child’s age.

Every element is a question mark for the prosecution and an opportunity for the defense. If the prosecution cannot prove any one of these elements beyond a reasonable doubt, you cannot be convicted.

The One Strike Law: Why Your True Sentencing Exposure May Be Far Greater

Most people charged under PC 288(a) hear “3, 6, or 8 years” and think that’s the worst-case scenario. For all intents and purposes, that’s what the base statute says. But California’s One Strike Law, Penal Code Section 667.61, can escalate the sentence dramatically when certain circumstances are present.⁶

This is one of the most important things to understand about PC 288(a) charges, and it’s something many defense attorneys fail to explain clearly.

How the One Strike Law Applies

Circumstance	Sentence
Multiple victims	15 years to life
Kidnapping, burglary, or tying/binding the victim	25 years to life
Use of a weapon or drugging the victim	25 years to life
Prior conviction for a qualifying sex offense	25 years to life

What does that look like in practice? If the prosecution alleges that you committed lewd acts against two different children, you are no longer facing 3 to 8 years. You are facing 15 years to life in state prison. If force or kidnapping is alleged, 25 years to life.

And under Penal Code Section 667.6(d), when multiple counts are charged on separate occasions, the court can impose full, separate, and consecutive terms for each count.⁷ So a defendant facing four counts of PC 288(a) with a One Strike allegation is not looking at 8 years. They could be looking at multiple consecutive life sentences.

The bottom line: the true sentencing exposure in a PC 288(a) case is often far more severe than the base statute suggests. Understanding the full picture is essential to building the right defense strategy.

Sex Offender Registration: The Tier System

A conviction under PC 288(a) requires mandatory sex offender registration under Penal Code Section 290.⁸ California now uses a tiered registration system:

Scenario	Tier	Duration
First conviction under PC 288(a)	Tier 2	Minimum 20 years
Multiple convictions or aggravating factors	Tier 3	Lifetime
PC 288(b) (force or duress)	Tier 3	Lifetime

Registration means annual check-ins with local law enforcement within five working days of your birthday. It means re-registering within five working days of any address change. It means your name and photograph on the Megan’s Law website. And it means residency restrictions that can limit where you live and work for decades.

For many clients, the registration requirement is the consequence they fear most. Even after prison time is served, registration follows you. It affects housing, employment, relationships, and daily life in ways that are difficult to overstate.

Penalties and Consequences

Prison Sentences

Charge	Sentence
PC 288(a), base offense	3, 6, or 8 years in state prison
PC 288(b)(1), lewd act by force or duress	5, 8, or 10 years in state prison
One Strike Law, multiple victims	15 years to life
One Strike Law, aggravating circumstances	25 years to life
Habitual Sexual Offender (PC 667.71)	25 years to life

Probation Is Presumptively Denied

Under Penal Code Section 1203.066, probation is available only in “unusual cases where the interests of justice would best be served.”⁹ In practice, this means probation is extraordinarily rare for PC 288(a) convictions. If there was substantial sexual conduct with the child, probation is eliminated entirely.¹⁰

Strike Offense

PC 288(a) is classified as both a serious felony and a violent felony under California’s Three Strikes Law.¹¹ Here’s what that means in practice.

A conviction counts as a strike on your record. Any future felony conviction carries a presumptively doubled sentence. A third strike can result in 25 years to life. And as a violent felony, you must serve at least 85% of your sentence before becoming eligible for parole. There is no “good behavior” early release like with many other offenses.

Key Collateral Consequences

Immigration. PC 288(a) is categorically an aggravated felony under federal immigration law.¹² For non-citizens, this means mandatory deportation, permanent inadmissibility, and no available relief. There are no exceptions. If you are not a U.S. citizen, the immigration consequences of this charge cannot be overstated.

Firearm rights. A felony conviction permanently prohibits you from owning, possessing, or purchasing firearms under both California and federal law.

Professional licensing. Teachers, healthcare workers, clergy, and anyone in a position of trust face automatic license revocation. In San Diego, with its large military, healthcare, and education sectors, this consequence is particularly devastating.

How Forensic Interviews Work and Why They Matter

In nearly every PC 288(a) case in San Diego County, the alleged victim is interviewed at the Child Advocacy Center through the Child Abuse Services Team (CAST). These forensic interviews are treated as critical evidence by the prosecution. But they are not infallible, and challenging the reliability of these interviews is often central to the defense.

What does a proper forensic interview look like? Well, it should follow established protocols, such as the NICHD (National Institute of Child Health and Human Development) protocol, which is designed to minimize suggestibility and leading questions. The interviewer should use open-ended prompts. They should avoid repeating questions. They should not introduce information the child has not volunteered.

The reality is, not every forensic interview meets these standards. Children are highly susceptible to suggestion, especially younger children. When interviewers ask leading questions, when parents or investigators have already discussed the allegations with the child before the formal interview, when the same questions are asked multiple times in different settings, the child’s account can become contaminated.

We scrutinize every forensic interview: the methodology used, the questions asked, the child’s responses, and any inconsistencies between the initial disclosure and later statements. Expert testimony on child suggestibility and memory can be powerful evidence when the interview process was flawed.

Additionally, San Diego law enforcement routinely uses pretext calls (controlled calls) in PC 288(a) investigations. This is where investigators have the alleged victim or a family member call the suspect while the conversation is being recorded. These calls are designed to elicit admissions. What you say during one of these calls can become the prosecution’s strongest evidence, or, when properly challenged, can reveal the weakness of their case.

Defense Strategies for PC 288(a) Charges

The reality of the situation is that PC 288(a) cases are defensible, to varying degrees depending on the facts. Many lawyers, based on inexperience, indifference, and/or outright incompetence, will encourage you to plead guilty at the first opportunity because they don’t know how to handle these cases at the highest levels. That’s not how we approach these cases.

Let’s walk through the defense strategies we consider when building your defense:

Lack of Sexual Intent

This is the most critical battleground in any PC 288(a) case. The prosecution must prove that the touching was done with the specific intent to arouse or gratify sexual desires. Many cases involve touching that was entirely innocent: a parent bathing a child, a caregiver applying sunscreen, a relative holding a child on their lap.

Context matters. We can, and will, present evidence of the circumstances, the relationship, and the nature of the contact if the facts support a position to do so. Expert testimony on child development and appropriate caregiving can help a jury understand that the touching was not sexual in nature.

False Accusation

False allegations are a documented reality in child molestation cases. They arise with troubling frequency in custody and divorce disputes, where one parent coaches or influences a child to make allegations against the other. They arise when a third party, whether a therapist, family member, or authority figure, suggests or implants memories. And they arise when adolescents fabricate allegations out of anger, a desire for attention, or to gain leverage in family dynamics.

We investigate the accuser’s motive, the circumstances under which the disclosure was first made, the identity of every person who spoke with the child before the formal interview, and every inconsistency in the child’s statements over time.

Unreliable Child Testimony and Suggestive Interviews

California law allows a conviction based solely on a child’s testimony without any corroborating evidence.¹³ That makes the reliability of the child’s account absolutely critical.

We challenge flawed forensic interview methodology, identify leading questions and contamination by parents or investigators, and retain experts on child suggestibility and memory when appropriate. Inconsistencies between a child’s initial disclosure and subsequent statements are often the most revealing evidence in these cases.

Insufficient Evidence

The prosecution bears the burden of proving every element beyond a reasonable doubt. That’s the highest standard in our legal system. In many PC 288(a) cases, there is no physical evidence, no medical findings, no eyewitnesses, and no confession. The entire case rests on one person’s word.

We challenge weak evidence, expose gaps in the prosecution’s case, and hold them to their constitutional burden. Reasonable doubt is not a technicality. It’s a protection.

Constitutional Violations

Evidence obtained in violation of your constitutional rights may be suppressed, meaning the jury never sees it. We examine whether police conducted an illegal search, whether your Miranda rights were violated during questioning, whether a confession was coerced through improper interrogation tactics, and whether the prosecution failed to disclose exculpatory evidence in violation of Brady.

Suppressing key evidence can fundamentally change the strength of the prosecution’s case.

Mistaken Identity

In cases involving multiple caregivers, family members, or institutional settings such as daycare facilities or schools, the defense may establish that someone else committed the alleged act. This is particularly relevant when the child was very young and may not be able to reliably identify the perpetrator.

Related Charges: Understanding the Differences

PC 288(a) is often charged alongside or confused with several related offenses. Understanding the distinctions matters for defense strategy.

PC 288(b)(1), lewd act by force or duress, carries 5, 8, or 10 years and applies when force, violence, duress, menace, or fear is alleged. The force element is what distinguishes this from the base offense.¹⁴

PC 288(c)(1), lewd act with a child 14 or 15, is a wobbler carrying 1, 2, or 3 years and applies when the defendant is at least 10 years older than the child. The age range and the wobbler classification make this a significantly different charge.¹⁵

PC 288.5, continuous sexual abuse of a child, carries 6, 12, or 16 years and applies when there are three or more acts of abuse over a period of at least three months. Critically, the prosecution cannot charge both PC 288.5 and specific acts under PC 288(a) for the same conduct during the same time period.¹⁶ This election requirement is a significant defense tool when multiple counts are charged.

PC 647.6, annoying or molesting a child, is a misdemeanor or wobbler that does not require actual touching. It is not a lesser-included offense of PC 288(a), but it may be relevant in plea negotiations as a lesser-related offense.¹⁷

Facing PC 288(a) Charges in San Diego?

When the accusation involves a child, the stigma is immediate and the prosecution is aggressive. San Diego’s District Attorney has a dedicated Sex Crimes Division staffed with specialized prosecutors who handle these cases exclusively. You need attorneys who understand how these cases actually work: how forensic interviews are conducted, how pretext calls are used, how the One Strike Law applies, and how to challenge the prosecution’s evidence at every stage. We’ve defended clients facing PC 288(a) charges built on false accusations in custody disputes, flawed forensic interviews, and allegations that fell apart under scrutiny. We know how to fight them.

Every day without representation is a day the prosecution works unopposed. The sooner we start, the more options you have.

Call us 24/7 for a consultation. We’ll review your case, explain what you’re actually facing, and start building your defense immediately.

References

1. 1. Penal Code, § 288, subd. (a) [“Any person who willfully and lewdly commits any lewd or lascivious act… upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.”]↑ Penal Code, § 288, subd. (a) [“Any person who willfully and lewdly commits any lewd or lascivious act… upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.”]
2. 2. See CALCRIM No. 1110 [Lewd or Lascivious Act: Child Under 14 Years].↑ See CALCRIM No. 1110 [Lewd or Lascivious Act: Child Under 14 Years].
3. 3. See CALCRIM No. 1110 [Lewd or Lascivious Act: Child Under 14 Years].↑ See CALCRIM No. 1110 [Lewd or Lascivious Act: Child Under 14 Years].
4. 4. See CALCRIM No. 1110 [Lewd or Lascivious Act: Child Under 14 Years].↑ See CALCRIM No. 1110 [Lewd or Lascivious Act: Child Under 14 Years].
5. 5. See CALCRIM No. 1110 [Lewd or Lascivious Act: Child Under 14 Years].↑ See CALCRIM No. 1110 [Lewd or Lascivious Act: Child Under 14 Years].
6. 6. Penal Code, § 667.61 [One Strike Law; sentencing for specified sex offenses with aggravating circumstances].↑ Penal Code, § 667.61 [One Strike Law; sentencing for specified sex offenses with aggravating circumstances].
7. 7. Penal Code, § 667.6, subd. (d) [Full, separate, and consecutive terms for certain sex offenses].↑ Penal Code, § 667.6, subd. (d) [Full, separate, and consecutive terms for certain sex offenses].
8. 8. Penal Code, § 290 [Sex offender registration].↑ Penal Code, § 290 [Sex offender registration].
9. 9. Penal Code, § 1203.066 [Restrictions on probation for certain sex offenses against children].↑ Penal Code, § 1203.066 [Restrictions on probation for certain sex offenses against children].
10. 10. Penal Code, § 1203.066 [Restrictions on probation for certain sex offenses against children].↑ Penal Code, § 1203.066 [Restrictions on probation for certain sex offenses against children].
11. 11. Penal Code, § 1192.7, subd. (c)(6) [Definition of serious felony]; Penal Code, § 667.5, subd. (c)(6) [Definition of violent felony].↑ Penal Code, § 1192.7, subd. (c)(6) [Definition of serious felony]; Penal Code, § 667.5, subd. (c)(6) [Definition of violent felony].
12. 12. See 8 U.S.C. § 1101(a)(43)(A) [Definition of aggravated felony for immigration purposes].↑ See 8 U.S.C. § 1101(a)(43)(A) [Definition of aggravated felony for immigration purposes].
13. 13. See CALCRIM No. 1190 [Testimony on Sex Offenses — Corroboration Not Required].↑ See CALCRIM No. 1190 [Testimony on Sex Offenses — Corroboration Not Required].
14. 14. Penal Code, § 288, subd. (b)(1).↑ Penal Code, § 288, subd. (b)(1).
15. 15. Penal Code, § 288, subd. (c)(1).↑ Penal Code, § 288, subd. (c)(1).
16. 16. Penal Code, § 288.5, subd. (c) [Prohibition on charging both continuous sexual abuse and specific acts for same conduct during same time period].↑ Penal Code, § 288.5, subd. (c) [Prohibition on charging both continuous sexual abuse and specific acts for same conduct during same time period].
17. 17. See Penal Code, § 647.6 [Annoying or molesting a child]; <em>People v. Lopez</em> (1998) 19 Cal.4th 282.↑ See Penal Code, § 647.6 [Annoying or molesting a child]; <em>People v. Lopez</em> (1998) 19 Cal.4th 282.